IV. Ex Parte Communications with In-house Counsel

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Ex Parte Communications with In-House Counsel

As noted above, many organizations have in-house legal departments. If an organization also employs outside counsel to represent it in a matter, lawyers for an opponent may want to bypass outside counsel and communicate directly with the organization's inside lawyers. This approach is generally permissible.¹²⁷ Model Rule 4.2 is intended to protect a client against unfair tactics and overreaching by the lawyer making the communication, and against harm arising from ill-advised statements that the client would be unlikely to make if a lawyer was present. These concerns are not implicated where the ex parte communication is aimed at another lawyer. Furthermore, prohibiting lawyers from communicating directly with organizations' inside counsel is inimical to the efficient resolution of disputes. Thus, there is no requirement that the lawyer wishing to speak with inside counsel first obtain the permission of the organization's outside counsel. In re Grievance Proceeding¹²⁸ is a rare case in point.

In that case, a plaintiff's lawyer twice wrote a defendant's general counsel after outside defense counsel would not respond to discovery or settlement offers. After the first letter, the defense lawyer had asked the plaintiff's lawyer not to communicate with the general counsel.¹²⁹ After the second letter, the general counsel reported the plaintiff's lawyer to the local federal court grievance committee for allegedly violating Rule 4.2. The committee concluded that the plaintiff's lawyer had not violated Rule 4.2 and recommended that the district court dismiss the complaint. The district court accepted the committee's recommendation. In doing so, the court observed that ex parte communication with a company's general counsel does not raise the same concerns as an ex parte communication with a lay employee, explaining that a general counsel's "training in the law helps ensure a level playing field of legal expertise in communications with opposing counsel."¹³⁰

In State ex rel. Oklahoma Bar Ass'n v. Tweedy,¹³¹ the Oklahoma Supreme Court suspended lawyer Craig Tweedy for violating various rules of professional conduct in prosecuting baseless claims in two separate cases. But one of the alleged offenses for which he was not disciplined was his ex parte communication with the general counsel of American Airlines in a case in which American had sued him.

In a nutshell, Tweedy had twice written to American's general counsel in the course of the litigation: one letter was a settlement demand and the second letter was a long, incoherent, and rambling manifesto. The Oklahoma Bar Association (OBA) charged Tweedy with violating Rule 4.2 as a result. The OBA came up...